Trad v Jones and Harbour Radio Pty Ltd

[2014] NSWCATAD 72

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Trad v Jones & Harbour Radio Pty Ltd [2014] NSWCATAD 72

Hearing dates:

14 May 2014

Decision date:

03 May 2014

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

N Hennessy LCM, Deputy President
M Bolt, General Member
Dr J Schneeweiss, General Member

Decision:

The matter is adjourned.

The following directions are made:

1. The matter is listed for hearing on 11 August 2014 at 10 am.

2. By 18 June 2014, each party is to file and serve any application for costs in relation to these proceedings.

3. By 2 July 2014, each party is to file and serve any submissions in reply to any application for costs.

4. By 15 July 2014 each party is to file and serve a document identifying the evidence on which they wish to rely in relation to the determination of the matter.

Catchwords:

PRATICE and PROCEDURE - scope of remittal of proceedings for racial vilification - procedural fairness

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)
Administrative Decisions Tribunal Act 1997 (NSW)
Supreme Court Act (NSW) 1970

Cases Cited:

Re Cockcroft and Attorney-General's Department (No 2) (1987) 13 ALD 623
Eatock v Bolt (2011) 197 FCR 261
Jones v Trad [2013] NSWCA 389
Kaluza v Repatriation Commission [2011] FCAFC 97
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178

Category:

Interlocutory applications

Parties:

Keysar Trad (Applicant)
Alan Jones (First Respondent)
Harbour Radio Pty Ltd (Second Respondent)

Representation:

Counsel
K Nomchong SC (Applicant)
K Eastman SC (First and Second Respondents)
Turner Freeman (Applicant)
Baker & McKenzie (Respondents)

File Number(s):

131126

reasons for decision

Introduction

1. The Court of Appeal has made various orders in relation to Mr Trad's complaint of racial vilification against Alan Jones and Harbour Radio Pty: Jones v Trad [2013] NSWCA 389. One of those orders is that the complaint made in relation to what is known as the 'Schedule A' broadcasts be remitted to the Tribunal for determination in accordance with law. In light of the Court of Appeal's decision, the parties agreed on four questions that the Tribunal needed to determine on remittal. (There was no agreement on a fifth question.) When the matter was listed for hearing, the Respondents' counsel, Ms Eastman SC, raised the question of the scope of the remittal saying that it went beyond the five questions previously identified. Ms Eastman SC also noted that the Applicant had not identified the evidence on which the Tribunal should rely in determining the matter.

1. The Applicant's counsel, Ms Nomchong SC, said that her client was not on notice that there was any dispute as to the scope of the remittal, or that there would be an issue about the relevant evidence. The Tribunal adjourned the matter so that that the following preliminary questions could be determined:

(1)   Was the Applicant on notice that the scope of the remittal and the identification of the evidence was in issue?

(2)   What is the scope of the remittal?

Applicable law

1. On 1 January 2014 the Administrative Decisions Tribunal was abolished and its jurisdiction was taken over by the Civil and Administrative Tribunal (NCAT). This matter was remitted to the Tribunal on 20 November 2013 but not heard until 14 May 2014. In accordance with the Civil and Administrative Tribunal Act 2013 (NSW), Sch 1, cll 6 and 8, Mr Trad's complaint is a "pending proceeding" and the provisions of the Administrative Decisions Tribunal Act 1997 continue to apply.

The complaint

1. The Court of Appeal summarised the complaint that is the subject of these proceedings at [2] and [3] of its judgment:

[2] On 28 April 2005, during his weekday morning radio "talk-back" programme on radio station 2GB, Mr Alan Jones read out the text of a letter that had been sent to him by a listener. In that letter, the listener had commented adversely on conduct that had been the subject of a segment on a current affairs programme televised the previous evening. The conduct in question (which I will refer to generally as the "car hoons" incident) related to the behaviour of a group of young men at The Rocks in Sydney on 24 April 2005 and the interaction of that group of men with police officers. The men had identified themselves as Lebanese. Mr Jones' comment, after reading the letter, was critical of the way the police had responded to the incident.

[3] The following day, Mr Keysar Trad, who was at the time the President of the Lebanese Muslim Association, lodged a complaint with the Anti-Discrimination Board, alleging that Mr Jones had made derogatory comments about him, and about the entire Australian Muslim community and Lebanese community, and seeking by way of an outcome that Mr Jones recant his derogatory remarks.

1. The reading of the letter including the comments Mr Jones made while reading the letter is referred to as the Schedule A broadcast. Each Respondent accepts that the letter contains derogatory and offensive comments about Lebanese males, describing them as 'vermin' and 'mongrels' and stating that they 'hate our country' and 'simply rape, pillage and plunder a nation that's taken them in." The Respondents do not accept that the conduct constitutes racial vilification.

Racial vilification provisions

1. Section 20C(1) of the Act makes racial vilification unlawful:

It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

1. "Public act" is defined in s 20B to include:

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

1. There are three exceptions to unlawful racial vilification provided for in s 20C(2), two of which are relevant:

(2) Nothing in this section renders unlawful:

(a) a fair report of a public act referred to in subsection (1), or

. . .

(c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

Decisions of Tribunal and Appeal Panel

1. The issue before the Tribunal was whether the Schedule A broadcast breached s 20C and, if so, whether the conduct of either or both Respondents comes within an exception in 20C(2)(a) or (c).

1. The Tribunal found that Mr Trad's complaint of racial vilification in respect of the Schedule A broadcast was substantiated and ordered certain remedies including that the Respondents pay damages of $10,000. Each party appealed to the Appeal Panel in relation to various parts of the Tribunal's decision. In relation to the appeal by Mr Jones and Harbour Radio, the Appeal Panel found that the Tribunal had made no error of law but accepted that the Tribunal had failed to consider the applicability of s 20C(2) in relation to Harbour Radio's conduct. The appeal was dismissed.

Court of Appeal's decision

1. When the appeal was made, the Court of Appeal had jurisdiction to determine an appeal on a question of law against any decision of the Appeal Panel: Administrative Decisions Tribunal Act, s 119(1) and Supreme Court Act 1970 (NSW), s 48(2)(f). The appeal was limited to the dismissal by the Appeal Panel of Mr Jones' and Harbour Radio's appeal from the Tribunal's decision in relation to the Schedule A broadcast.

1. The Court of Appeal decided that the Tribunal had made the following errors of law:

(1)   failing to identify the relevant audience and consider the likely effect of the broadcast on an ordinary member of that audience; and

(2) failing to deal with the applicability of s 20C(2)(c) in relation to Harbour Radio.

1. The powers of the Court of Appeal were set out in s 120 of the Administrative Decisions Tribunal Act:

(1) The Supreme Court is to hear and determine the appeal and may make such orders as it thinks appropriate in light of its decision.

(2) The orders that may be made by the Supreme Court on appeal include (but are not limited to):

(a) an order affirming or setting aside the decision of the Appeal Panel,

and

(b) an order remitting the case to be heard and decided again by the Appeal Panel (either with or without the hearing of further evidence) in accordance with the direction of the Supreme Court.

1. The Court of Appeal made the following orders:

(1)   Appeal allowed.

(2)   Order 1 made by the Appeal Panel on 20 October 2012 dismissing the appeal by the appellants from the Tribunal's decision in relation to the Schedule A broadcast be set aside.

(3)   In lieu, uphold the appeal by each of the appellants from the Tribunal's decision in relation to the Schedule A broadcast; set aside that decision and remit the complaints made against each of the appellants in relation to the Schedule A broadcast to the Tribunal for determination in accordance with law.

(4)    Order the respondent to repay the sum of $10,000.

(5)   Direct the parties to file any brief written submission in relation to costs (and as to whether any part of the Court's reasons should be redacted on publication) within seven days, with a view to those submissions being dealt with on the papers.

Procedure following remittal

1. Following the Court of Appeal's decision, the Tribunal listed the matter on 21 January 2014. At that time the Respondents proposed that they draft the questions that the Tribunal would need to address on remittal and that the Applicant respond to those questions. The Tribunal agreed with that course and gave directions accordingly.

1. The questions that the Respondents drafted were as follows:

(1)   Who was the relevant audience to whom the Schedule A broadcast was directed?

(2)   Was the likely effect of the Schedule A broadcast to incite an ordinary member of the relevant audience to hate Lebanese males?

(3)   Was the likely effect of the Schedule A broadcast to incite an ordinary member of the relevant audience to hold Lebanese males in serious contempt?

(4) Does the exception in s 20C(2)(c) of the Anti-Discrimination Act 1977 (NSW) apply to the Schedule A broadcast in respect of the First Respondent?

(5) Does the exception in s 20C(2)(c) of the Anti-Discrimination Act 1977 (NSW) apply to the Schedule A broadcast in respect of the Second Respondent?

1. The matter was listed again on 19 February 2014 but adjourned until 10 March 2014. On that date the Applicant's solicitor advised that his client objected to Question 4 of the draft questions because it is not a question that arises on remittal. The Tribunal directed that the Respondents provide brief submissions in relation to the relevance of Question 4 by 26 March 2014 and that its relevance be determined by the Tribunal at the commencement of the hearing.

1. On 14 May 2014, when the matter was listed for hearing, the Respondents submitted that neither the scope of the appeal nor the evidence on which the Applicant intended to rely had been identified adequately.

Was the Applicant on notice?

1. The Applicant's counsel submitted that her client was not on notice of any issue about the scope of the remittal, apart from whether question 4 was relevant. The Applicant had assumed that the matter had been listed for hearing so that the parties could make submissions in relation to the questions drafted by the Respondents.

1. The Respondents disagreed saying that the Applicant was on notice that the scope of the remittal was in issue firstly because of a reference at footnote 1 to their written submissions dated 31 March 2014 and secondly because the Respondent had written to the Applicant's solicitor the day before the hearing.

1. In their written submissions, the Respondents stated that it is necessary to address Question 4 because of the Appeal Panel's finding that the Tribunal had failed to identify the relevant audience. The footnote to that point states that:

In any event, a remittal is not limited solely to the successful grounds of appeal (ie, those points of law which were made out): Kaluza v Repatriation Commission [2011] FCAFC 97 at [37], [41], Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178 at [38]-[39].

1. This footnote relates only to the relevance of Question 4. It did not have the effect of putting the Applicant on notice that there was a dispute about the scope of the remittal in general.

1. We accept the Applicant's submission that they cannot be expected to respond to such a significant issue as the scope of the remittal when they were not on notice of that issue until the day before the hearing. The Applicant was not effectively on notice that there was any dispute about the scope of the remittal apart from the dispute as to the relevance of Question 4. This finding is relevant to any determination of an application for costs.

1. It follows that the Respondents' case, until the day of the hearing, was that the scope of the remittal was as formulated in the draft questions set out at [16]. Having now submitted that the scope is broader, we must determine that issue. Both parties were content for the Tribunal to determine the issue on the basis of their oral submissions.

Principles as to scope of the remittal

1. As the Court of Appeal noted in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178 at [33], "It is commonplace for orders of remittal to be made without indication to the court below as to how it should proceed to determine a matter, otherwise than "according to law". The Court added at [39] that, "In many cases, there will be merit in leaving to the discretion of the trial court decisions as to the scope of any rehearing." The trial court should determine that question according to "the precise nature of the decision and the nature of the error."

1. The Respondents submitted that the terms of the remittal are unqualified except that the remittal only relates to the Schedule A broadcasts. Because there is no explicit direction from the Court of Appeal as to how the matter is to be dealt with, the remittal is not limited to particular grounds.

1. We do not agree with that proposition for several reasons. Firstly, it does not accord with the Court of Appeal's orders or its judgment. The Court of Appeal summarised the basis for its orders at [143] - [145]:

[143] In relation to Mr Jones' appeal, I have concluded that the Appeal Panel did not err in dismissing his contention that he had not engaged in a public act when speaking the words comprising the Sch A broadcast; but that it did err in not finding that the Tribunal had erred (in both Mr Jones' case and that of Harbour Radio) in finding that the impugned public act had the capacity to incite the requisite emotion because of the Tribunal's failure to identify the particular audience to which the act was directed and to assess the likely effect of the broadcast on an ordinary member of that audience. The Appeal Panel did not extend the appeal to the merits on this issue.

[144] The issue as to whether the impugned public act had the capacity to incite an ordinary member of the relevant audience having been raised before the Tribunal but not having been dealt with by it, the appropriate course was for the Appeal Panel to have upheld the appeal by Mr Jones on that ground and to have remitted the matter to the appropriate authority (the Tribunal) for the proper determination of that issue. The Appeal Panel's decision in relation to Mr Jones should be set aside and the complaint with respect to Mr Jones in relation to the Sch A broadcast remitted to the Tribunal.

[145] The same result follows in relation to Harbour Radio, where the same error as to the identification of the relevant audience was made. In addition, an error of law has been established in the failure by the Tribunal separately to consider the applicability of s 20C(2)(c) to Harbour Radio's position. The Appeal Panel's decision should be set aside and similarly the complaint with respect to Harbour Radio in relation to the Sch A broadcast should be remitted to the Tribunal for redetermination. (Emphasis added)

1. The Court of Appeal's orders and its judgement make it clear that while the whole complaint in relation to the Schedule A broadcast is remitted to the Tribunal, the purpose of the remittal is for the Tribunal to re-consider the discrete matters in relation to which the Court of Appeal had identified error.

1. Secondly, a material consideration when determining the appropriate scope of the hearing following remittal, is the nature of the matter in dispute. Unlike the remittal of an administrative decision such as that in Kaluza v Repatriation Commission [2011] FCAFC 97, Mr Trad's complaint involves the assessment of facts at a fixed time in the past. The Tribunal is not carrying out the administrative task of making the 'correct and preferable' decision as of the date of hearing, but of determining whether a complaint of racial vilification is substantiated.

1. Thirdly, where the Tribunal's decision is quashed by the court and the matter remitted for further consideration, a party cannot generally raise a new matter of law for the first time: Re Cockcroft and Attorney-General's Department(No 2) (1987) 13 ALD 623 per Deputy President Bannon, but contra Dr Hayes.

Findings as to the scope of the remittal

1. The draft questions 1, 2 and 3 address the Appeal Panel's finding about the failure to identify the audience and the likely effect of the broadcast on a member of that audience. Draft question 5 addresses the finding that the Tribunal failed separately to consider the applicability of s 20C(2)(c). Each of these questions is a relevant question for the Tribunal to determine on remittal.

1. In relation to question 4, the Respondents submitted that any finding made by the Tribunal as to the audience will be relevant to the question of whether the Schedule A broadcast was 'done reasonably and in good faith . . for other purposes in the public interest, including discussion or debate about and expositions of any act or matter' within the meaning of s 20C(2)(c). The Respondents cited the decision of Eatock v Bolt (2011) 197 FCR 261 at 340, citing Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCER 105 at 128-129 [79]-[82]. In relevant quotation in full is:

Considerations which may have a bearing on whether an act is done reasonably include time, place, audience, and whether or not gratuitously insulting or offensive matters, irrelevant to the question of public interest under discussion, have been included.

1. The Respondents' appeal to the Court of Appeal on the operation of s 20C(2)(c) related solely to the position of Harbour Radio. There was no appeal in relation to the applicability of the exception to Mr Jones. As the Court of Appeal pointed out at [110], "No challenge was made by Mr Jones in the Notice of Appeal to the Appeal Panel's dismissal of his appeal on the applicability of s 20C(2).

1. The Applicant submitted that unless there is a material difference in the way this Tribunal identifies the audience, there is no need to reconsider the exception. However, the Tribunal may wish to consider the question in case its finding about the audience has the potential to lead to a different view about the applicability of the exception than that reached by the original Tribunal.

1. While generally a party cannot raise a new matter of law for the first time on remittal, the Tribunal will consider whether or not its finding about the relevant audience affects the operation of s 20C(2)(c) in relation to Mr Jones.

1. The Tribunal does not accept that the scope of the appeal extends to a re-determination of the applicability of the fair report exception in s 20C(2)(a). The decision of Sunol v Collier (No 2) [2012] NSWCA 44 which deals with the relationship between s 20C(1) and s 20C(2), was taken into account by the Court of Appeal in its decision. Nor does the Tribunal consider it necessary for the Applicant to re-state the remedies it seeks. Despite the Respondents' submission on this point, there is no scope for the Applicant to run a different case in relation to remedies.

1. Our conclusion is that the scope of the appeal was accurately summarised by the Respondents in the five Draft Questions set out at [16] above. We do not accept the Respondents' late submission that the scope of the appeal is any wider than that.

Evidence

1. There is no dispute that the Tribunal is not re-hearing this matter. The evidence on which the Tribunal is to rely is the same evidence as was before the Tribunal at first instance. The Respondent saw merit in the Applicant identifying the evidence on which it intends to rely in advance of the hearing. Although neither the Tribunal, nor the parties, had raised that matter as an issue at either of the two directions hearings in January or February 2014, now that the hearing has been delayed, it is opportune to make directions in relation to the identification of evidence.

Orders and Directions

The matter is adjourned.

The following directions are made:

1. The matter is listed for hearing on 11 August 2014 at 10 am.

2. By 18 June 2014, each party is to file and serve any application for costs in relation to these proceedings.

3. By 2 July 2014, each party is to file and serve any submissions in reply to any application for costs.

4. By 15 July 2014 each party is to file and serve a document identifying the evidence on which they wish to rely in relation to the determination of the matter.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 04 June 2014